The Writing on the Wall: Social Media, Defamation and Employment

Traditionally, the personal life of an employee has been just that: personal. Employers are generally not entitled to pry or take issue with the manner in which employees conduct themselves outside of working hours. That said, the private life of an employee may indeed turn out to be the employer’s business in certain circumstances.

Employees owe a duty of loyalty and faithful service to their employers which prohibits them from disparaging their employer or superiors. For the most part, few employers in the past attempted to enforce their legal right to prevent employees from making a negative comment to a colleague, or venting to friends about workplace issues in a social setting. This is no longer the case. In the era of social media websites like facebook, and the popularity of person blogs, disparaging comments are easy to prove, can be widely disseminated to the public, including clients and customers of the employer, and have the potential to seriously harm the employer’s reputation.

In a decision of the B.C. Employment Standards Tribunal, the decision-maker upheld a finding that the employer had not violated the Employment Standards Act when it refused to permit an employee to return to work after taking a maternity leave (Re: Walder BC EST#D113/10). The employer was deemed to be justified in terminating the employer’s employment based on her numerous inappropriate acts of insubordination. This included generally “badmouthing” her employer on a website.

Similarly, a personal caregiver at a home for the aged was held to be justifiably discharged from her employment based on comments made on her blog about her workplace. She referred to management in derogatory language and complained about the individuals she was attending to at the home. The union attempted to characterize the blog as “nothing more than what employees would talk about on their break”. The arbitrator disagreed. The blog was available to the public and in breach of her confidentiality agreement, represented conduct unbecoming of a personal caregiver and amounted to insubordination (Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance), [2007] O.L.A.A. No. 135, Clarke Grievance).

In another labour arbitration decision from Ontario, a pilot for an airline serving small, mainly First Nations communities was dismissed for postings on his facebook wall that were insulting towards the clientele of his employer. The arbitrator referenced the above case involving a personal caregiver and observed that: “where the internet is used to display commentary or opinion, the individual doing so must be assumed to have known there is potential for virtually world-wide access to those statements”. The grievor employee was found to have created a circumstance of potential harm to his employer’s reputation. However, discharge was deemed to be an excessive form of discipline based on certain mitigating factors, including an apology and otherwise clean record (Wasaya Airways LP v. Air Line Pilots Assn., International (Wyndels Grievance), [2010] C.L.A.D. No. 297, Wyndels Grievance).

The recent decisions indicate that there can be little expectation of privacy for those publishing comments on private facebook pages or other social networking sites that are readily accessible to others and easily re-published for viewing by an unlimited audience.